Some Uses of Legal Fictions in Criminal Law

Abstract

The essay considers fictions in four areas of criminal law. The area of jury nullification fits most easily into a narrative of fictions as a mechanism for gentle amelioration of undesirable laws (in particular, undesirable penalties). The value of fictions in this narrative depends upon acceptance of the reactivity of the jury as the finger on the contemporary moral pulse. The construction of facts as a bargaining process is easier to accept in the civil field, but can also operate successfully in the criminal law, in which to fail altogether to recognise the possibility of fact construction would be to commit to a worse fiction. The essay contrasts these two against two other uses of fiction in criminal law which ought to be treated with greater scepticism. One is the use of forfeiture deriving its justification from the medieval fiction to the effect that the thing is guilty. This is impossible to justify and the recent growth of forfeiture is to be regretted. Finally, by way of contrast, the essay looks at the use of deeming provisions in criminal proscriptions. Whatever their value elsewhere, they ought not to be countenanced in substantive criminal law.